Recording Conversations at Work

Background

At PAFSO, we are often asked by members about the implications of recording conversations at work. Most times, these are conversations surrounding a dispute or some mistrust with their employer, and members wish to preserve the conversations as a kind of proof. Is it a good idea? This article will help you decide.

Is it legal?

Yes. In Canada, it is legal to record a conversation in which you are involved.

Under the Criminal Code, it is illegal to intercept a private conversation. However, there is an exception as long as one party in the conversation consents to its interception. So, it is legal for you to record any conversation you participate in—you are a party in the conversation, and as the initiator of the recording, you also consent to its interception.

In a 1980 case, the Supreme Court of Canada confirmed that the interception of a private communication is lawful if one of the parties consents to it, and that the consent can be given by either the originator of the conversation or its intended recipient.

In the labour relations context, this was confirmed by the Quebec Superior Court in La Compagnie D’Assurance Standard Life v. Renald Rouleau, [1995] R.J.Q. 1407, which held that an employer who surreptitiously recorded a telephone conversation with a former employee had not violated the Criminal Code.

Although the Criminal Code contains a provision that makes it illegal for Canadians to record conversations in which they are involved with surreptitious recording devices, it excludes regular tape recorders, dictaphones or cellular phones. It is therefore completely legal for you to record a conversation you are having with a regular recording device, regardless of how many people are involved in the conversation.

Is it a good idea?

While the Criminal Code makes the legality of recording your own conversations quite clear, the question of whether you should or shouldn’t is a bit of a murkier one.

If you are recording a conversation in order to use it as evidence in an arbitration hearing, you may be disappointed. Most, though not all, labour adjudicators have denied the admission of this type of evidence arguing that surreptitious recordings are antithetical to fostering trust in labour relations.

In the few cases where recorded conversations have been admitted as evidence, it has usually been because it was proven that the prior conduct of one of the parties was such that surveillance was warranted. However, these cases are a minority and definitely not the norm.

In addition to these legal considerations, you should also consider whether the recording will do more harm than good to your case. An adjudicator might view the tapes as proof that as an employee, you cannot be trusted and should not therefore be reinstated to your position. And, as mentioned above, you should keep in mind the corrosive effect surreptitious recordings can have on the relationship between you, your union and your employer. It also may be the case that the recording does not in fact help your case.

This happened recently in the case of Hart v. Parrish & Heimbecker, Limited, 2017 MBQB 68. In that case, Mr. Parrish had been discharged following several harassment complaints against him. Following the discharge, it came to management’s attention that Parrish had recorded conversations with senior management on his company cell phone. The employer added this fact as an after-acquired ground for discharge. The court held that Parrish’s inappropriate use of his cell phone amounted to a breach of his confidentiality and privacy obligations, as well as a breach of the personal code of conduct that he had established following initial complaints against him. In the end, not only did the recordings not help his case, they actually hurt it.

It is quite possible that a surreptitiously recorded conversation will be viewed by the employer to be a breach of a federal department’s Code of Conduct and could therefore lead to discipline on this ground alone.

What should you do?

Given the legal and labour relations considerations that are at play, it is simply always preferable not to surreptitiously record conversations.

One alternative is to advise the person or people involved that you wish to record your conversation and to get their consent.

If they do not consent to your recording, you can take careful notes of the conversation. Don’t be afraid to ask people to slow down so you can keep up, if you need to. Make sure to send around an email with an account of the conversation immediately afterwards so everyone can agree on what was said.